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Arrests at White House Over NDAA Military Detention of Americans, Occupy Wall Street Joins Fight.

By Ralph Lopez - Posted on 01 January 2012

Buried by the television news media but visible on Youtube, at least three days in a row of protests over NDAA law allowing indefinite military detention of American citizens without charge or trial have taken place recently, with at least 11 arrests confirmed so far.

WASHINGTON – Several Occupy D.C. protesters will likely face charges after they were arrested in a protest outside the White House.

U.S. Park Police say 11 protesters were arrested Monday night because they ignored police orders to leave the grounds. The protesters included some Occupy D.C. participants, though it wasn't immediately clear if all those arrested were part of the Occupy movement.

The group was protesting a defense funding bill that would allow the president to detain people indefinitely if they are suspected of terrorist activities.

The deceptions center around Sections 1021 and 1022. Section 1021 says in substance:

"Congress affirms that the authority of the President to use all necessary and appropriate force ...to detain...A person who was a part of or substantially supported al-Qaeda...or associated forces...including any person who has...directly supported such hostilities in aid of such enemy forces...The disposition of a person...may include...Detention under the law of war...without trial until the end of the hostilities..."

20 SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED21 FORCES OF THE UNITED STATES TO DETAIN22 COVERED PERSONS PURSUANT TO THE AU-23 THORIZATION FOR USE OF MILITARY FORCE.

24 (a) IN GENERAL.—Congress affirms that the author-25 ity of the President to use all necessary and appropriate1 force pursuant to the Authorization for Use of Military2 Force (Public Law 107–40; 50 U.S.C. 1541 note) includes3 the authority for the Armed Forces of the United States4 to detain covered persons (as defined in subsection (b))5 pending disposition under the law of war.

8 (1) A person who planned, authorized, com-9 mitted, or aided the terrorist attacks that occurred10 on September 11, 2001, or harbored those respon-11 sible for those attacks.

12 (2) A person who was a part of or substantially13 supported al-Qaeda, the Taliban, or associated forces14 that are engaged in hostilities against the United15 States or its coalition partners, including any person16 who has committed a belligerent act or has directly17 supported such hostilities in aid of such enemy18 forces.

19 (c) DISPOSITION UNDER LAW OF WAR.—The dis-20 position of a person under the law of war as described21 in subsection (a) may include the following:

22 (1) Detention under the law of war without23 trial until the end of the hostilities authorized by the24 Authorization for Use of Military Force.

specifically affirms that the President has the authority to deny due process to any American it charges with “substantially supporting al Qaeda, the Taliban or any ‘associated forces’” — whatever that means.

Would “substantial support” of an “associated force,” mean linking a web-site to a web-site that links to a web-site affiliated with al-Qaeda? We don’t know.

“Substantial support” of an “associated force” may imply citizens engaged in innocuous, First Amendment activities. Direct support of such hostilities in aid of enemy forces may be construed as free speech opposition to U.S. government policies, aid to civilians, or acts of civil disobedience.

All accusations of who is "Al Qaeda" rest solely on the word of the government, with no witnesses, evidence, or any other form of due process required.

Section 1021 also reads: "Nothing in this section shall be construed to affect existing law." But "existing law," in the words of Sen. Lindsey Graham a key mover of the bill, refers to Padilla v. Rumsfeld in the Fourth Circuit Court of Appeals, which upheld the government's claim of authority to hold Americans arrested on American soil indefinitely.

Section 1022 "(b) APPLICABILITY TO UNITED STATES CITIZENS AND LAWFUL RESIDENT ALIENS" states:

(1) UNITED STATES CITIZENS.—The requirement to detain a person in military custodyunder this section does not extend to citizens of the United States.

However, although the section says it is not “required” that US citizens be held in military detention, it is nevertheless “allowed.”

A nationwide recall campaign has been launched by Constitutionalist groups and other activists seeking to recall the senators and congressmen who voted for the detention legislation, either by using recall laws already in place, or calling on state legislatures to pass them. States currently allowing the recall of federal officials are Arizona, Colorado, Louisiana, Michigan, Montana, Nevada, North Dakota, Oregon, Washington, and Wisconsin.

The campaign is recommending that states without recall laws use Washington state's recall law as a model. Washington's law provides for recall only for two specific and serious grounds, one of which is violation of the Oath of Office. Citizens can lobby their state legislators to pass a recall law and then act immediately on it once it is passed.

Federal recall laws remain relatively untested in the courts, with two courts, a NJ state court and a federal appeals court in Idaho, having disallowed recall of two US senators. However, recall proponents consider the decisions weak and vulnerable. One analysis remarks that although "no federal legislator has yet been recalled..."

...It has not been for lack of interest. Rather, the process has languished in part due to debates on whether or not legal authority exists for recall of U.S. Senators and Congressmen; and, in the case of Idaho, interference by a state court prevented recall of a federal legislator.

An Idaho state court in an unreported memorandum decision interpreted Idaho’srecall statute to only apply to state officers, and further opined that the law wasunconstitutional for the dubious reason that it would constitute a new "qualification" for office in addition to age, residency and inhabitancy, the existing stated qualifications in the U.S. Constitution.

A recall law is not a change in the pre-qualifications required to be a senator or congressman, such as age or residency. The analysis states:

The other main claim made by opponents of federal recall is that unilaterally changing the term of office is prohibited by the Constitution. But a recall does not change the term of office. The term stays the same and the replacement only serves outthe remainder of the term, then is up for election again, for the same term as before.

Federal recall proponents argue that the right of the people of a state to recall federal legislators is firmly grounded in the Tenth Amendment of the U.S. Constitution, which "reserves" all powers not specifically enumerated as the preserve of the federal government "to the states...and to the people." The Constitution requires an "affirmative prohibition," in court language, in order for a power to not be included in the Tenth.

Proponents further note that if the Constitution is to be adhered to, the "right to a speedy and public trial, by an impartial jury," i.e. the Sixth Amendment, is just as firm a part of the Constitution as language which might be interpreted to prohibit federal recall.

Some scholars contend that the Tenth was the Founders' way of assuring that the Constituti­on was to be viewed as a straitjack­et on the government­, not on the people, and point out that measures like recall are also fully provided for in the Declaratio­n of Independen­ce. The Declaration states that in cases in which the government has become "destructi­ve" of the ends of preserving basic rights, for which it was instituted­, the people have the "right to alter or abolish" the government­.

In addition, that the power to recall senators and congressmen resides in the people can be inferred by the existence of the Constitutional provisions for expulsion from either house by vote. It would be absurd to conclude that the Founders intended for congressmen to be more responsible to their colleagues than to the very constituents they represent. If a congressman's term can be cut short by a super-majority vote of his or her colleagues, surely a state may exercise the same power in narrowly-defined circumstances, such as violation of the Oath of Office, which for representatives and senators is:

"I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic."

Were OWS to get behind a nationwide effort to pass state recall laws and then immediately use them, the shadowing effect on congressmen, especially senators, might be enough to persuade many to resign. Shoot, Jim, it just ain't as fun as it used to be, with this recall bidness and what-all. Then the OWS agenda - money out of-politcs etc. - might have a chance.

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